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The Information Commissioner’s decision
The Information Commissioner’s decision
The School’s written representations.
During the Commissioner’s investigation, the School wrote to the Office of The Information Commissioner on 3 August 2022 as follows:
“SoSE presented its materials to the College’s students (and not to the public) during the Consent Lesson, for the sole purpose of delivering the RSE / PSHE Lessons and not otherwise. No hard or soft copies of materials used were provided to students or left with them following the presentation. SoSE did not share records of the Consent Materials and/or Other Materials requested in the Lesson Plans Request with the Trust until the Trust asked SoSE to do so for its Consent Meeting with the Complainant to take place on 4 November 2021.
… The Trust does not consider the SoSE’s sharing of its teaching materials (the Consent Materials and Other Materials) with the College’s students in the course of RSE / PSHE Lessons:
• to have removed the confidential quality of the relevant materials (since such disclosure was limited to a private invited group of students for a limited purpose only and with no further disclosure or publication or rights granted); and/or
• to be relevant to the ongoing obligation of confidence the Trust owes to SoSE, since the delivery to the College students of lessons involving the Consent Materials and/or Other Materials during the Consent Lesson (or any other lesson at the College) would not have and has not resulted in the information being put in the public domain and losing its quality of confidence…not least because the Trust itself did not receive a copy of such materials at this stage.”
The 3 August 2022 letter also explained why the School still possessed a copy of the Slides:
“…The Consent Slides were explicitly shared on the basis that they remained confidential and could not be re-used, further disclosed, shared or published (and should be deleted following the Consent Meeting). Despite this, a copy of the Consent Slides were not deleted and were retained (pending the outcome of the Consent Complaint)…
…the Trust does not intend to delete the Consent Slides until conclusion of the ongoing FOIA complaint in respect of the Request…”.
The School’s 3 August 2022 letter further explained the School’s / Trust’s position regarding the Appellant’s request for disclosure of the identities of SoSE facilitators at the Session:
“…the Trust…refused to provide the names of the Consent Staff…on the basis that doing so would involve a breach of the data protection laws.
… the Trust considers that the information held falls within the exemption under section 40(2) FOIA. This is on the basis that providing information…would involve providing the names of individuals from the SoSE…in the context of activities that they had been undertaking at or for the College, in respect of specific lessons/events/involvement, at specific times. This would clearly involve a disclosure of such individuals’ personal data (individual name, plus connection to SoSE and/or the College and in the context of RSE/PSHE education and their involvement with relevant lessons/presentations). It should be noted that disclosure to the Complainant under FOIA would also involve disclosure to the world at large.
… the individuals involved have not consented to the disclosure of their personal data in this manner, the Trust considered that the only potential lawful basis is that the processing is necessary for legitimate interests pursued by the Trust or a third party, in making the requested disclosure under FOIA (including trying to assist the Complainant under FOIA and being transparent about the RSE / PSHE Lessons).
… The Trust does not feel that disclosure of any of the requested information about Consent Staff…is necessary for the legitimate interest(s) identified by the Trust. This is because the Complainant has already been provided with a great deal of information about the RSE / PSHE Lessons and the SoSE, including the information sought under the Lesson Plans Request (albeit she was only shown the Consent Slides in person, outside FOIA and in confidence, and has not been provided with a copy under the Request).
…Details of the individuals comprising the Consent Staff…involved in delivering the Consent Lesson, would not add to the Complainant’s understanding of the content of those lessons or any of the other issues raised in her complaint…
… The Trust notes that disclosure under FOIA is to the world at large and there would be nothing to prevent the Complainant, or indeed anyone else, from any further use, publication or disclosure of the individuals’ personal data. The Trust considers that employees have a reasonable expectation of privacy in their work life and should not, and would not, expect information about them to be disclosed publicly in this manner. The Trust has no evidence that would indicate SoSE, or relevant College/Trust, staff would reasonably expect disclosure of their details to the public on request.
… The Trust has not asked any of the relevant individuals if they are willing to consent to disclosure of their personal data. The Trust did not consider it was appropriate or reasonable to approach the individuals in the circumstances, particularly considering the stress or upset it may cause…”.
- Heading
- Introduction
- Secretary of State for Education’s involvement in these proceedings
- Factual background
- Appellant’s interaction with the School / Trust before she made her FOIA request
- Informing Parents
- Discussions between the School / Trust and SoSE about access to the Slides
- Appellant’s concerns about, and interaction with, SoSE
- Evidence about the potential determent for SoSE were the Slides to be disclosed
- The outcome of the Appellant’s complaint about the School
- The School of Sexuality Education
- Failure to be transparent about lessons taught to children
- The Appellant’s FOIA request
- identities of SoSE staff were withheld under section 40 FOIA (personal information)
- The Information Commissioner’s decision
- The Commissioner’s decision notice (ref. IC-171936-C9H8)
- was not trivial and had the necessary quality of confidence
- any reasonable person, standing in the shoes of the Trust, should have realised attracted an obligation of confidence
- First-tier Tribunal’s decision
- The Appellant’s arguments
- the Commissioner erred in holding that the Slides could be withheld in reliance upon s.41 of the FOIA the Commissioner erred in holding that the identities of SoSE’s facilitators were exempt as personal data; and
- Whether section 405 of EA 1996 carries an implied obligation to provide parents with sex education teaching materials: Ground 1
- The law of confidence
- Disclosing identities of SoSE facilitators
- Observations on the Appellant’s case before the First-tier Tribunal
- The First-tier Tribunal’s decision
- Section 41 FOIA / law of confidence: disclosure of the Slides
- Section 40 FOIA: disclosure of identities of SoSE’s facilitators
- the legitimate interest was not simply ‘knowing who is teaching her child sex education’ (paragraph 168)
- in relation to the Appellant’s particular legitimate interests
- Any person making a request for information to a public authority is entitled—
- if that is the case, to have that information communicated to him.”
- Information accessible by other means
- Personal information
- Information is exempt information if—
- “First, the information itself, in the words of Lord Greene, M.R. in [ Saltman Engineering Co. Ltd. v. Campbell Engineering Co. Ltd. (1948) 65 R.P.C. 203] on page 215, must “have the necessary quality
- “Thirdly, there must be an unauthorised use of that information to the detriment of the party communicating it”
- Commissioner’s guidance about section 41 of FOIA
- Education
- sex education comprised in the National Curriculum
- Statutory Guidance
- “typical policies are likely to include sections covering…
- subjects. Schools should ensure that parents know what will be taught and when, and
- of Relationships Education and RSE. Good communication and opportunities for parents
- sex education delivered as part of statutory RSE. Before granting any such request it
- or visiting organisation’s credentials. Schools should also ensure that the teaching
- the second conditions the way in which the State provides education
- Copyright
- Grounds of appeal and arguments
- Ground 1 – whether section 405 EA 1996 imposes an implied obligations to provide information
- Appellant
- The Commissioner
- Ground 2 – Tribunal’s assessment of the law of confidence, and application of section 41 of FOIA
- Appellant: principles of the law of confidentiality
- disclosure of the information in question would constitute a breach of confidence, contrary to the principles expounded in Coco v Clark ; and
- UKUT 313 (AAC) at [38]. For this purpose, the test is one of proportionality: HRH The Prince of Wales v Associated Newspapers Limited [2008] Ch 57 at [67] and [69])
- the information must be inaccessible (Arnold LJ in The Racing Partnership Ltd & Ors v Sports Information Services Ltd [2020] EWCA Civ 1300 , [2021] Ch. 233 at [48]), and “the claimant…must demonstrate
- the information must be worthy of confidentiality by virtue of a quality central to it, which is of particular relevance where component parts, but not the information itself, may be in the public dom
- the industry/sphere in which the parties operate may be relevant because “whether information should be treated as confidential will be judged in the light of the usage and practices of the particular
- Appellant: First-tier Tribunal’s application of the law
- SoSE published a book in September 2021 Sex Ed: An Inclusive Teenage Guide to Sex and Relationships . The book was in the public domain at the date of the Appellant’s FOIA request and contained a chap
- The Commissioner
- assuming the Appellant is correct that the Slides drew on a variety of sources, and included information replicated in the public domain, it does not follow that the Slides did not merit protection un
- the argument that the First-tier Tribunal (and previously the Commissioner) confused confidentiality and copyright is misplaced. The law of confidence often looks to the originality of information in
- SoSE
- Appellant
- Commissioner
- SoSE
- Appellant
- Commissioner
- Ground 5
- Appellant
- Commissioner
- Ground 6
- Appellant
- failed to take into account the primacy of parental rights to determine what education their child receives
- expectations of privacy) against the public interest in disclosure (see AB v A Chief Constable [2014] EWHC 1965 (QB) at [75]). A question to be asked is whether an individual had a reasonable expectat
- is the data controller, or third parties to whom data is disclosed, pursuing a legitimate interest?
- is the processing unwarranted because the legitimate interests are outweighed by the rights and freedoms of the data subject? The Commissioner submits that this is a balancing exercise to be applied s
- SoSE
- Proceedings before the Upper Tribunal
- Additional evidence
- Hearing
- The Upper Tribunal’s analysis
- Ground 1
- The First-tier Tribunal’s analysis
- Section 405 EA 1996 : Upper Tribunal’s analysis
- Ground 2
- The Appellant’s case on the law of confidence before the First-tier Tribunal
- Whether disclosure would constitute an actionable breach of confidence: matters of fact and law
- Determination of Ground 2: analysis
- the Appellant criticises the Tribunal for failing properly to consider whether the first condition in Coco v Clark was met (information must have the necessary quality of confidence), and simply assum
- the Appellant submits that the Tribunal failed to appreciate that disclosure of the information within the Slides at the Session destroyed any confidentiality they might previously have possessed. The
- Ground 2: conclusion
- Ground 3
- Ground 4
- Ground 5
- Ground 6
- the balance of interests fell plainly in favour of disclosing identities of the SoSE facilitators (notice of appeal)
- Conclusions